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TMI Blog2015 (11) TMI 904X X X X Extracts X X X X X X X X Extracts X X X X ..... stainable and needs to be set aside - Decided in favour of assessee. - Appeal No. ST/76/08 - - - Dated:- 20-10-2015 - Shri M.V. Ravindran, Member (Judicial) And Shri C.J. Mathew, Member (Technical) For the Petitioner ; Shri S.P. Sheth, Advocate For the Respondent : Shri Vikram, Kaushik, AC (AR) ORDER Per: M.V. Ravindran This appeal is directed against Order-in-Original No. 32/STC/SJS/07-08 dated 18.1.2008 passed by the Commissioner of Service Tax, Mumbai. 2. The relevant facts that arise for consideration are the appellant herein has registered with the authorities as Air Travel Agency and discharged the Service Tax liability. Officers of the DGCEI visited the premises and on thorough investigation came to conc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... fore the Reviewing authority. The Reviewing Authority i.e. Commissioner of Service Tax, did not agree with the contentions raised and came to conclusion that penalties under Section 76 and 78 of the Finance Act, 1994 needs to be imposed and did so by the impugned order before us. 3. Learned Counsel would submit that the Reviewing authority has wrongly exercised the provisions of section 84 of the Finance Act, 1994. He would draw our attention to the Order-in-Original and submit that the adjudicating authority had recorded clearly that there was no modus operandi or mens rea on part of the appellant for non-discharging Service Tax liability due to severe financial trouble. It is his submission that the Reviewing authority could not have r ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... consideration is whether the Reviewing authority could have reviewed the order of the adjudicating authority for use of discretionary power under Section 80 of the Finance Act, 1994 for dropping the proceedings initiated for imposition of penalties. 5.2 On perusal of the Order-in-Original passed by the adjudicating authority, we find that in para 4.3, 4.4, 4.5 and 4.6, the adjudicating authority has given the detailed reasoning for not imposing penalties. As against the said fairly reasoned order, the Reviewing authority in the Order-in-Review has not recorded any reasoning as to why there was no justifiable cause and penalty needs to be imposed under various sections. The only reasoning given by the Reviewing authority is that but for ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ising his suo motu powers to interfere with a discretionary order passed by the original authority where he was satisfied with the cause shown and he had not imposed penalty. Aggrieved by the said order, the Revenue is in appeal. 3. The judgment rendered by the Tribunal in Majestic Mobikes (P) Ltd. has been upheld by this court. Therefore in view of the judgment rendered by this court in C.C.E. v. Sunitha Shetty as well as Majestic Mobikes (P) Ltd. case, once the original authority being satisfied about the cause shown, exercised its power under Sec. 80 of the Act and did not impose penalty, the Commissioner has no jurisdiction to interfere with such discretionary orders and impose penalty in pursuance of his revisional jurisdiction. T ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of the Act is required to be acted upon in the absence of finding of fraud, collusion, wilful mis-statement, suppression of facts etc., as envisaged by Section 78 of the Act. The order-in-original dated 15-6-2005 (A-1) does not record any finding of fraud, mis-statement etc., which could have been the basis for acquiring jurisdiction to impose the penalty. Accordingly, the Assessing Authority exercised the power under Section 80 of the Act and decided not to impose any penalty under Section 78. There was no basis for the Revisional Authority-cum-Commissioner to acquire the jurisdiction to impose penalty. There is no evidence produced before the revisional authority or any other authority to prove fraud, collusion, misrepresentation etc. so ..... X X X X Extracts X X X X X X X X Extracts X X X X
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